United States v. Polite

United States District Court, D. Nebraska

September 20, 2017

UNITED STATES OF AMERICA, Plaintiff,v.DARNELL POLITE, Defendant.

FINDINGS AND RECOMMENDATION

Michael D. Nelson United States Magistrate Judge

This
matter is before the Court on the Motion to Suppress and
Request for Evidentiary Hearing (Filing No. 14)
filed by Defendant, Darnell Polite. Defendant filed a brief
in support of the motion (Filing No. 15) and the
government filed a brief in opposition (Filing No.
17).

The
Court held an evidentiary hearing on the motion on August 29,
2017. Defendant was present with his attorney, Richard
McWilliams. The government was represented by Assistant
United States Attorney, Matt Lierman. City of Omaha police
officers Mike Sundermeier (“Officer Sundermeier”)
and Officer David Preston, Jr. (“Officer
Preston”) testified on behalf of the government. The
Court received into evidence Exhibits 1 through 17 offered by
the government, and Exhibits 101 and 105 through 116 offered
by Defendant. A transcript (TR.) of the hearing was prepared
and filed on September 11, 2017. (Filing No. 48).
This matter is now fully submitted to the Court. For the
following reasons, the undersigned magistrate judge
recommends that Defendant's motion be denied.

BACKGROUND

On
October 31, 2016, Officer Sundermeier and Officer Preston,
both assigned to the Gang Unit of the Omaha Police Department
(“OPD”), were on duty and patrolling a
residential area of 48th and Boyd and Sahler
Streets in Northeast Omaha, which had seen an increased
presence of Crips gang members. (TR. 5, 50-51). Officer
Sundermeier was familiar with the area from prior narcotics
and firearm investigations and had recovered firearms from
the area on at least two prior occasions. Officer Preston
knew of homicides that have occurred there. Both officers
knew the area was associated with the Crips gang, including
the 40th Ave., Hilltop, and 44th Ave.
Crips. (TR. 7, 51). The officers were dressed in jeans and
tactical vests marked with “Police” on both
sides. (TR. 9). They were also equipped with handcuffs,
firearm, baton, mace, and a shoulder mounted audio/visual
recording system. (TR. 10, 71).

At
approximately 10:35 p.m. on October 31, 2016, Office
Sundermeier and Officer Preston were driving eastbound on
Sahler Street in Preston's unmarked Dodge Magnum to an
apartment complex located at 4842 Sahler Street. (TR. 7-8,
50-51). The manager and property owner of the apartment
complex had previously contacted police about the increased
activity of people hanging around out front of the apartment
complex, and asked police to encourage individuals not to
hang out there. (TR. 10-11, 51). The apartment management
provided police with keys to access the apartment's
locked front doors to aid their patrol. (TR. 11).

When
Officer Sundermeier and Officer Preston arrived at the
apartment complex, they observed approximately twenty people
standing in a parking lot out front. (TR. 13, 52). The
officers recognized some individuals as 40th Ave.
and 44th Ave. gang members from the officers'
prior contacts. (TR. 12, 53). Officer Sundermeier stopped and
activated the Dodge's red and blue lights, at which point
the officers observed parties disperse east away from the
officers, and west towards the apartment complex door. (TR.
13-14, 53-54).

When
Officer Sundermeier exited his vehicle, he observed one
individual, identified as Defendant, quickly bend down for
approximately one second behind a blue Chevrolet Impala as
soon as Officer Sundermeier began approaching him. (TR.
14-15, 18). Officer Sundermeier did not initially see
anything in Defendant's hands. (TR. 48). No one else was
in the area immediately around Defendant. (TR. 19). As
Defendant ducked down behind the Impala, Officer Sundermeier
heard an object hit the ground where Defendant was standing.
Officer Sundermeier attributed this first sound to Defendant.
Almost immediately after hearing the first sound, Officer
Sundermeier then heard another object hit the ground a little
bit to Defendant's east. Officer Sundermeier attributed
the second sound to a group of four other individuals,
including a known Crips member. (TR. 14, 17-18, 40). Officer
Sundermeier described the first sound as a “metallic
thump . . . metal-on-metal, ” and the second sound as
metal or something heavy hitting the ground. (TR. 16-17).
Officer Sundermeier has heard similar sounds on previous
occasions when he has recovered firearms. (TR. 17). Officer
Sundermeier was between twenty to thirty feet away from
Defendant when he heard the sounds. (TR. 45). Officer Preston
did not hear the sounds because he was speaking to a large
group of people farther away. (TR. 55).

Officer
Sundermeier knew Defendant from prior contacts. On a previous
occasion, Officer Sundermeier was informed by Defendant that
he is a 40th Ave. Crips gang member. Additionally,
in June 2016, during the execution of a search warrant,
Officer Sundermeier recovered two firearms and drugs from a
residence where Defendant was living. (TR. 27-28, 32-33).
Importantly, Officer Sundermeier also knew from his prior
contacts that Defendant was under the age of 21. (TR. 29).

Officer
Sundermeier walked to make contact with Defendant, believing
Defendant had just discarded a firearm. (TR. 18). Officer
Sundermeier immediately placed Defendant, who was holding a
cell phone, in handcuffs and asked if he had discarded a
firearm. (TR. 18-19, 48). After placing Defendant in
handcuffs, Officer Sundermeier moved to the front of the
Impala to look in the area where Defendant had ducked down.
(TR. 20). In that location, Officer Sundermeier saw a Makarov
semi-automatic pistol in the grass between the sidewalk and
the building. (TR. 20, 41). The firearm was not covered in
dust and did not appear to have been there for a long time.
(TR. 20-21). Officer Sundermeier remained standing next to
the firearm until its location could be documented and
photographed. (TR. 23). Once the Crime Lab arrived on the
scene, Officer Sundermeier obtained the serial number of the
firearm recovered near Defendant and found it was not
registered. (TR. 29).

A
second firearm wrapped in a blue bandana was found in the
location where Officer Sundermeier had heard the second sound
and observed the four other individuals, including the known
Crips member. (TR. 23). The Court received into evidence
photographs of the recovered firearms and area around them
(Exhibits 5-10), as well as the body camera footage from
Officer Sundermeier's body camera (Exhibit 17) and
Officer Preston's body camera (Exhibit 16).

The
officers transported Defendant to Central Headquarters to be
interviewed. (TR. 29, 60). Defendant was placed in an
interview room equipped with an audio/visual recording
system, which was activated when Defendant was first placed
in the room. (TR. 62-63). The audio/visual recording of the
interview room was received into evidence (Exhibit 15). (TR.
63). Defendant's handcuffs were taken off once he was in
the interview room. (TR. 84).

Officer
Preston conducted the interview with Defendant. Prior to the
interview, Officer Preston utilized an OPD Rights Advisory
Form (Exhibit 4), which he read to Defendant word for word.
(TR. 64-65). Officer Preston believed Defendant was under the
influence of marijuana, but he appeared to be in tune, lucid
and understood what was taking place. Defendant also
responded appropriately to questions. (TR. 65). Officer
Preston made no threats or promises, and Defendant did not
appear to be under duress or have any medical issues. (TR.
66).

Officer
Preston questioned Defendant for less than an hour. (TR. 66).
During the interview, Defendant consented to provide a DNA
sample and provided his address which was placed on a consent
form (Exhibit 3). (TR. 66-67). Officer Preston testified that
both he and Defendant signed the consent ...

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